Kerala High Court · 2012

P.BHAVADASAN, J. ---------------------------------------------B.A. No.8622 of 2012 ---------------------------------------------Dated this the 6th day of December, 2012O R D E RPetitioner is the first accused in Crime No.237 of 2002 of AnchalPolice Station, Kollam District , who is alleged to have committed offencespunishable under Sections 120(B), 143, 147, 148, 427, 460 & 302 read with149 IPC and Sections 3 & 5 of the Explosive Substances Act. He and theother accused were released on bail. The petitioner jumped the bail andremained away for 8 years. He was apprehended on 28.7.2010 after alookout notice was issued. He has been in custody since then. 2. The learned counsel appearing for the petitioner points out thatthe petitioner had moved this court on three occasions praying for bail. Onall the three occasions this court was disinclined to grant bail taking intoconsideration the various aspects and hoping that the trial could beexpedited. Therefore, those bail applications were disposed of this courtobserving that the trial may be conducted as early as possible.3. The learned counsel appearing for the petitioner points out that inspite of this direction or observation made by this court trial is yet tocommence and petitioner has been in incarceration for the last 2 years.The counsel points out that even now it is not certain that the trial willcommence in the near future. According to the counsel, his information isthat the case now stands posted to 2nd of January, 2013 which is only a B.A. No.8622 of 2012 2formal posting. According to the learned counsel indefinite incarceration isuncalled for and for the said proportion the learned counsel relied on thedecision reported in Sanjay Chandra v. Central Bureau of Investigation[(2012) 1 SCC 40] and State of Kerala v. Raneef [(2011)1 SCC 784]. Thelearned counsel for the petitioner also pointed out that any stringentconditions may be imposed so as to ensure the availability of the accusedfor trial but his continued detention is quiet unjustified.4. The learned Public Prosecutor very vehemently opposed thepetition. It was pointed by him that the petitioner is a principal offenderand he remained away from law for a long time and it was with greatdifficulty that he could be apprehended. It is true that according to thelearned counsel there has been some delay in conducting the trial but itwas not due to any fault on the part of the prosecution. He could havefaced trial with other accused person and the trial would have beencompleted long ago. It is also pointed out that he had forged a passportand managed to go abroad and these conducts of the petitioner disentitledhim from getting bail. Further it is pointed out by the learned PublicProsecutor that this court may issue direction either to the court where thematter is now pending or if that court is not functioning at present, theSessions Judge may be directed to transfer the case to the court which isfunctioning as of now directing expeditious trial of the case. At any rate,according to the learned Public Prosecutor, the petitioner is not entitled to B.A. No.8622 of 2012 3bail especially in view of this conduct of forging a passport.5.After having bestowed attention to the decision relied on by thelearned counsel for the petitioner which must be confined to the fact of thecase as there was no case of any absconding in those cases, it is felt thatthe submission made by the learned Public Prosecutor has substance andmerits. The petitioner has only to thank himself for the delay in trial. Hewas granted bail and he is accused of even having travelled on a forgedpassport. As rightly pointed out by the learned Public Prosecutor hisconduct has been far from satisfactory. 6. It is true that there has been, in spite of the observations anddirections made by this court, delay in the trial and it could not commenceimmediately. One of the reason is that the court where the matter ispending is not functioning at the time and another court has been put incharge of the same. However, it cannot be said that there was any lacheson the part of the prosecution in causing the delay in trial.7. Considering the conduct of the petitioner and also the seriousnessof the offence and especially in the light of the fact pointed out by thelearned Public Prosecutor that in the trial some of the accused wereconvicted it is felt that it will not be appropriate to release the petitioner nowon bail. However, as rightly pointed out by the learned counsel for thepetitioner that trial cannot be postponed indefinitely. Under suchcircumstances, the only course open to this court is to direct the court B.A. No.8622 of 2012 4where the matter is pending to dispose of the case as expeditiously aspossible or to direct the District and Sessions Judge concerned to eithertransfer the case to a court which is functioning as of now to dispose of thematter as expeditiously as possible within the time frame specified by thiscourt.8.In the result, while rejecting the application for bail, there will be adirection to the court where the matter is pending as of now to dispose ofthe case as expeditiously as possible at any rate within a period of sixmonths from 1.1.2013 or in case it is so happens that the said court is notfunctioning, the District and Sessions Judge of the concerned district isdirected to transfer the case to the court which is functioning which courtthen also shall dispose of the case within the time stated above.These observations, the petition is disposed of as above. Forward a copy of the order to the concerned court and District andSessions Court, Kollam.P.BHAVADASAN, JUDGE.cms